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Organized medicine pushes back on expansions of scope of practice

Physicians ask legislatures to establish scope-of-practice review committees. They say court cases in Texas and Iowa highlight the need to preserve patient safety.

By Amy Lynn Sorrel — Posted Jan. 18, 2010

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In 2009, physicians fought a blitz of scope-of-practice expansions by other health professionals on legislative, legal and regulatory fronts.

Organized medicine defeated attempts by naturopaths to seek licensure, prevented chiropractors from being able to perform invasive procedures and achieved further regulation of lay midwives. The efforts were among more than 300 scope-related bills the American Medical Association tracked last year.

Physicians don't expect the battles to let up, and with patient safety on the line, they are countering such efforts with some fresh tactics.

In anticipation of another onslaught in 2010, physicians, with the help of AMA model legislation, plan to push lawmakers to establish state scope-of-practice review panels to evaluate plans by nonphysician health professionals who wish to expand their practice realm. The panels would be composed of various regulatory board officials, university experts and other health care advisers to help lawmakers understand the underlying medical, educational and public interest considerations.

"In the heat of legislation, it's just 'he-said, she-said.' What we're hearing from legislators is they feel uncomfortable making these important safety determinations without any background or expertise," said Susie Pouliot, Idaho Medical Assn. CEO.

The AMA also is helping states with model legislation requiring nonphysicians to identify their credentials clearly -- for instance by wearing badges or limiting use of the term "doctor." California and Oklahoma passed similar legislation in 2009.

But nonphysician health professionals, who say they are acting within their scope of practice, achieved some legislative victories of their own. For example:

  • Advance practice nurses in Hawaii gained prescribing authority.
  • Podiatrists in Tennessee were allowed to perform ankle surgery.
  • Naturopaths in Vermont added diagnosis and treatment of pain.

A broad push by optometrists to perform surgery and prescribe medications is expected to continue, despite defeat of related bills in Florida, Nebraska, South Carolina and West Virginia last year. Physicians also anticipate that optometrists will seek national certification for the profession.

"The public wants to know when someone says they can do something, that they have the training and experience to do it. The problem is, standards vary widely state to state," said Cynthia Bradford, MD, senior secretary for advocacy for the American Academy of Ophthalmology.

The American Optometric Assn. declined comment.

A legal offensive

When legislative avenues fail, nonphysicians are turning to regulatory boards to expand their realm of expertise -- a tactic that increasingly is landing scope debates in the courts, said Rocky Wilcox, vice president and general counsel at the Texas Medical Assn.

In a recent win, a Travis County District Court judge, on Nov. 24, 2009, struck down a 2005 state chiropractic board regulation allowing chiropractors to perform manipulation under anesthesia and needle electromyography. The court said state law forbade nonphysicians from performing such surgical procedures. The TMA and Texas Medical Board sued the Texas Board of Chiropractic Examiners and the Texas Chiropractic Assn. over the regulation. An appeal is under way.

The court also found, however, that state law may not preclude a portion of the board regulation allowing chiropractors to use the term "diagnose." A trial on that issue is expected to begin in March.

"This is a problem that all states are having, and our view is the Legislature has the policy power to decide who can safely do certain things," Wilcox said. "If these [regulatory] decisions are not challenged, then it allows agencies to go way outside of what the statute says, and allied professionals will be practicing medicine and diagnosing medical conditions when they are not qualified to do it. So it's a safety issue."

Some physicians say a pending Iowa case underscores the potential dangers of allowing nonphysicians to tread into the practice of medicine.

In December 2009, six patients sued a now-defunct hospital-owned pain clinic for allegedly unnecessary and improper injections and other treatments performed on them by two nurse anesthetists running the facility.

"This really does highlight what can happen when you begin to expand into a service line without clearly defined standards," said Jeanine Freeman, senior vice president of legal affairs for the Iowa Medical Society. The organization is not tied to the lawsuit but worked with the medical staff at the hospital that owned the pain clinic to resolve what physicians believed was a lack of quality and training at the clinic. The hospital declined to comment.

The lawsuit came as advance practice nurses in Iowa sought what Freeman called "roundabout" ways to practice chronic interventional pain management through regulatory changes. Those changes, if approved, would allow them to independently supervise fluoroscopic procedures.

"Advance practice nurses are an extremely valuable part of the health care team. But this is a clearly defined and recognized medical practice," Freeman said. "Pending a lack of resolution, we are looking at legislative remedies and would not foreclose the possibility of landing in a court of law."

Access concerns

Nonphysician health professionals and their boards say their scope and authority are being restricted unfairly, risking access to care.

Without commenting on the Iowa case, Mitchell H. Tobin, American Assn. of Nurse Anesthetists senior director of state government affairs, said, "It's our position that nurse anesthetists are safely providing [pain] services to patients every day, that this is a much-needed service and that with an aging population and more and more patients dealing with chronic pain, it's important that nurse anesthetists be able to provide these services."

Nurse anesthetists share doctors' goals to ensure patient safety and competence standards, Tobin said. But physicians have used regulatory and legislative avenues to undermine nurses' legitimate scope of practice and "create what would be in effect a monopoly for medical doctors."

Texas Board of Chiropractic Examiners Executive Director Glenn Parker said chiropractors performing manipulation under anesthesia and needle EMG undergo extensive training and are well-qualified to do what he said were nonsurgical procedures. Moreover, they must be able to diagnose patients to determine if chiropractic or medical care is appropriate.

The Texas case "brings up legal questions about the state of Texas allowing medical associations to determine what is and is not within the scope of chiropractors," Parker said. State chiropractors also are expected to push for legislative remedies, he added.

The AAO's Dr. Bradford said team-based collaboration among physicians and other health care professionals is key to resolving access issues. "Do you want patients to have access to just anything or have access to a quality standard of care?"

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ADDITIONAL INFORMATION

Ongoing scope battles in state courts

Texas Medical Assn. and Texas Medical Board v. Texas Board of Chiropractic Examiners and Texas Chiropractic Assn.
Venue: Travis County District Court, Texas, decided November 2009
Issue: A trial court struck down portions of a state chiropractic board regulation allowing chiropractors to perform manipulation under anesthesia and needle EMG -- surgical procedures the court said were permitted only by medical doctors. The court allowed the case to proceed to trial on the issue of whether chiropractors can use the term "diagnosis."

Kelli Haun et al. v. Perry Comeau et al.
Venue: Fayette County District Court, Iowa, filed December 2009
Issue: A group of patients sued two nurse anesthetists who ran a hospital-owned pain clinic for allegedly giving them unnecessary pain injections, acting beyond their expertise and illegally billing for the treatments.

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Correction

An information box accompanying this article incorrectly characterized and listed certain state legislation pertaining to physician assistants. Only legislation in Hawaii and Illinois, which was limited in nature, pertained to physician assistants. Legislation in both states addressing independent practice was limited to allowing physician assistants to provide emergency medical field response care with minimal or no physician supervision. The laws pertaining to prescription authority/drug administration, also in both states, were limited to allowing physician assistants to prescribe only HIV or AIDS medications without preauthorization by Medicaid, or certain controlled substances as delegated by a supervising physician. The box incorrectly suggested that physician assistant scope legislation was enacted in Kansas, Maine, Minnesota, New Hampshire, Ohio, Oklahoma and Washington. In the interest of clarity, the information box has been removed online because it was determined that the broad categorizations of legislation concerning physician assistants and other health professionals did not accurately present the information. American Medical News regrets the error.

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